AO-04-01-CD

Subject: Is it permissible under state
law for appointed executives of the Municipality of Anchorage
to advocate on behalf of ballot propositions

This letter responds to the July 7, 2004 request for an
advisory opinion regarding whether it is permissible under
state law for appointed executives of the Municipality of
Anchorage to advocate on behalf of ballot propositions.
Under current Municipal Code, only elected municipal officials
may advocate on behalf of a ballot question. The Municipality
intends to amend the code, specifically AMC 1.15.180.J.2,
to permit appointed senior municipal officials to advocate
on behalf of ballot issues.The queston is whether state
law permits appointed executives of the Municipality of
Anchorage to advocate on behalf of ballot propositions.

Short Answer

The Campaign Disclosure Law (AS 15.13) does not differentiate
between elected and appointed municipal officials advocating
on behalf of ballot questions. State law does not prohibit
appointed or elected municipal officials from advocating
on behalf of a ballot issue. However, when a municipality
expends money in efforts to influence the outcome of a ballot
question, the funds must be specifically appropriated for
that purpose by municipal ordinance, and the expenditure(s)
must be report to the Alaska Public Offices Commission (APOC).

Law

Sec. 15.13.145. Money of the state and its political subdivisions.

(a) Except as provided in (b) and (c) of this section,
each of the following may not use money held by the entity
to influence the outcome of the election of a candidate
to a state or municipal office:

(1) the state, its agencies, and its corporations;

(2) the University of Alaska and its Board of Regents;

(3) municipalities, school districts, and regional educational
attendance areas, or another political subdivision of
the state; and

(4) an officer or employee of an entity identified in
(1) - (3) of this subsection.

(b) Money held by an entity identified in (a)(1) - (3)
of this section may be used to influence the outcome of
an election concerning a ballot proposition or question,
but only if the funds have been specifically appropriated
for that purpose by a state law or a municipal ordinance.

(c) Money held by an entity identified in (a)(1) - (3)
of this section may be used

(1) to disseminate information about the time and place
of an election and to hold an election;

(2) to provide the public with nonpartisan information
about a ballot proposition or question or about all the
candidates seeking election to a particular public office.

(d) When expenditure of money is authorized by (b) or (c)
of this section and is used to influence the outcome of
an election, the expenditures shall be reported to the commission
in the same manner as an individual is required to report
under AS 15.13.140. (§ 24 ch 48 SLA 1996)

Regulations

2 AAC 50.356. USE OF PUBLIC MONEY. (a)
Funds are specifically appropriated for the purposes of
AS 15.13.145(b) if the appropriating body provides notice
on the public record that the funds will be used to influence
the outcome of an election.

(b) In the absence of a specific appropriation, an officer
or employee of an entity who is identified in AS 15.13.145(a)(4)
may use money held by that entity to communicate about a
ballot proposition or question if the communication is made
in the usual and customary performance of the officer’s
or employee’s duties.

(c) For the purposes of AS 15.13.145(c)(2), information
is nonpartisan if it does not advocate a position in an
election. Nonpartisan information includes the official
language of a ballot question, a neutral ballot summary,
or if provided for all candidates seeking a particular office,
the candidates’ names, contact information, or statements.

(d) If an entity or individual identified in AS 15.13.145(a)(1)-(4)
uses money held by the entity to make an election-related
expenditure, the expenditure must be disclosed on a report
of contributions or independent expenditures under AS 15.13.040(d)
and (e) unless the expenditure is made only to disseminate
information about the time and place of an election or to
hold an election. (Eff. 1/1/2001, Register 156)

Authority: AS 15.13.010 AS 15.13.030 AS 15.13.145

2 AAC 50.360. MUNICIPALITIES. (a) If a
municipality seeks to influence the outcome of an election,
using budgeted municipal funds, it shall report as an individual
under AS 15.13.040(d) and (e).

(b) All communications which are paid for by a municipality
and which are related to an election are considered to be
intended to influence the outcome of an election unless
they are only notices of the election or unless they are
required by statute, charter, or ordinance.

(c) The municipality shall file with the commission a list
of candidates and their mailing addresses within seven days
following the deadline for filing for municipal office.

(d) If a municipality seeks to influence the outcome of
an election using funds contributed to it for that purpose,
it shall register and report as a group under AS 15.13.040(b)
and (c) and AS 15.13.050. (Eff. 5/16/76, Register 58; am
1/4/86, Register 97; am 8/22/97, Register 143)

Authority: AS 15.13.010 AS 15.13.030 AS 15.13.040
AS 15.13.050 AS 15.13.090

Analysis

The campaign disclosure law does not prohibit an appointed
executive of the Municipality of Anchorage (or any other
municipal official) from advocating on behalf of a ballot
issue. However, all municipal funds expended in connection
with this advocacy must be specifically appropriated for
that purpose by municipal ordinance and the expenditure
must be disclosed to the public by filing an expenditure
report with APOC.

When a municipal official prepares, publishes, and distributes
materials advocating on behalf of a ballot question, the
official’s activities are subject to the campaign
disclosure law. Because these activities are intended to
influence the outcome of an election, the costs associated
with the advocacy activities must be paid with funds specifically
appropriated for the purpose of influencing the ballot proposition
and the Municipality must file an expenditure report.

Conclusion

Under AS 15.13, municipal officials are not prohibited
from advocating on behalf of ballot issues. Any municipal
funds expended in association with the advocacy must be
specifically appropriated by municipal ordinance and must
be publicly disclosed by filing an expenditure report with
APOC.

The Commission approved the advice in this letter by an
affirmative vote of 5-0 on September 8, 2004. The advice
in this opinion applies only to the specific activity for
which the advice was requested.

A copy of the original letter requesting the above advisory
opinion is available upon request at the Alaska Public Offices
Commission. 907/276-4176.